Opinion
June 13, 1991
Appeal from the Supreme Court, Montgomery County (White, J.).
Plaintiff commenced this action to recover for injuries sustained by plaintiff's infant daughter when she was bitten by defendants' dog. The complaint alleges, inter alia, that the dog was dangerous and that defendants should have known of its vicious propensities. Defendants moved for summary judgment dismissing the complaint. Supreme Court granted the motion and plaintiff now appeals.
We affirm. Defendants supported their motion with deposition testimony that, to the best of their knowledge, the dog had never previously bitten anyone or otherwise evidenced vicious propensities. Inasmuch as proof of the animal's ferocious nature and a defendant's knowledge thereof is essential to a cause of action for injuries sustained in an attack by a dog (see, Muller v McKesson, 73 N.Y. 195, 199; Lynch v Nacewicz, 126 A.D.2d 708; 5A Warren, Negligence in the New York Courts, Animals, §§ 4.02-4.04, at 133-135 [3d ed]), this showing established, prima facie, defendants' entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853; Zuckerman v City of New York, 49 N.Y.2d 557, 562; Lynch v Nacewicz, supra, at 709; Panzer v Harding, 118 A.D.2d 842, 843; Russell v Lepre, 99 A.D.2d 489; but see, Stoop v Kurtz, 121 A.D.2d 529, 530 ). Accordingly, plaintiff's failure to come forward with contrary evidence required Supreme Court to grant the motion (see, Zuckerman v City of New York, supra).
Weiss, J.P., Yesawich Jr., Levine and Harvey, JJ., concur. Ordered that the order is affirmed, without costs.